His Honor, the Judge, Harold J. Rothwax, Part I

I’m Richard Heffner, your host on THE OPEN MIND. And it was all of a half-dozen years ago when I chaired a statewide committee structured by the New York judiciary to study cameras in the courts, that I first began over and over again to hear my judicial and judicious OPEN MIND guest today characterized as a “tough, smart, learned, wise, and eminently fair trial judge, the best on the bench”, and “an activist who doesn’t believe that a sitting judge has to act like a potted plant.

Well, now, after a quarter century of conspicuous service on the bench, Judge Harold J. Rothwax has brought together his wise and humane observations of, and judgments on, our criminal justice system in an extraordinarily readable, new, Random House volume, graphically but all too appropriately titled, Guilty: The Collapse of Criminal Justice.

Of course, I take Judge Rothwax both at his word and at his verdict. But we need to know now what precisely are the charges our criminal justice system is guilty of, and why. And that’s the question I would put to you, Judge.

ROTHWAX: Well, it’s guilty of not being rational, it’s guilty of not being knowable, it’s guilty in the sense of not being subject to review. Almost alone among our democratic institutions, the law, as pronounced by the Supreme Court, is not subject to review and rethinking. And I think, as a result of that, we tend to be somewhat passive and accepting in relation to it. The Supreme Court is reluctant to review its own rulings because of the power of precedent. State legislatures are inhibited in passing bills because of the constitutionalization of our criminal law. And over the years, over the 30 years since the Warren revolution in the early 1960s, I think our law has become encrusted with rulings and with precedents and with statutes and with procedures that have increasingly become irrational, increasingly become hard to understand and know about, and which have burdened the search for truth in meaningful ways, so that very often what our criminal justice system represents is an obstacle course, rather than a search for truth.

HEFFNER: You say “search for truth”. But I remember doing a program with Paul Freund, that distinguished scholar, in which he sort of laughed at the fact that I titled the program “Search for Truth”. He says that has nothing to do with the law. And that, in a very real sense, was longer ago than the beginning of the Warren revolution.

ROTHWAX: Well, I hope it shocked you then, and I hope it shocks you now.

HEFFNER: It did.

ROTHWAX: Yes. I mean, what is the purpose of a trial, what is the purpose of a hearing, if it is not a search for the truth? In a way, Paul Freund, who was an eminent legal scholar from the Harvard Law School, and a well renowned and highly regarded professor, expressed, I think, the cynicism that lawyers feel about the inability of our system to ascertain the truth under these circumstances. But it’s certainly true that a primary objective of criminal procedure is to search for the truth. I mean, when you go to trial, the issue is: Did he do it? Can the people prove the guilt of this defendant beyond a reasonable doubt? And you have to know what the truth is in order to make that judgment. And if we’re not seeking for the truth, what in God’s name are we doing? What are we doing if we’re not seeking for the truth?

HEFFNER: Well, I think the cynics are saying that one is looking for a verdict of guilty or not guilty rather than looking for the truth. Is that unfair?

ROTHWAX: The word “verdict” means “to speak the truth”. That is its basis. I think it is unfair. I think probably one of the problems we have is that we have a system that is run entirely by lawyers for their own interests and for their own benefit, and that very few other people take an interest in it or believe they can effectively act upon it. And the lawyers themselves have significant self-interest in this area so that they’re not interested in changing the system.

HEFFNER: Well, now, wait a minute, Judge. What do you mean, “Self-interest?” My son, assistant district attorney, I thought, took an oath…

ROTHWAX: (Laughter) Yes.

HEFFNER: …when he became an attorney. And it was not an oath to his self-interest.

ROTHWAX: Well, your son, whom I know well and who is a wonderful district attorney…

HEFFNER: I didn’t mean for the plug to be put in.

ROTHWAX: I guess, as I point out in the book, the prosecutors are certainly seeking for the truth. Their goal is to seek the truth. Their job definition is to seek the truth. And, indeed, if they don’t believe that they can prove guilt beyond a reasonable doubt, they are ethically obliged to dismiss the charge. The defense attorneys have no such equal obligation. Their job is to be a champion for he accused person and to say everything for them, for that accused person, that can be said under the law by way of bringing doubt upon the issue of the defendant’s guilt. So the defense attorney and the prosecutor are different. And over time, it seems to me, the defense attorneys have a disproportionate authority within the profession. And they have tended to make themselves more central and more dominant within the profession, to their own self-interest. Yes. I mean, I think it’s quite clear that the defense bar is the dominant force in criminal justice in the United States today and that their purpose is not to seek the truth.

HEFFNER: Well, I certainly felt paternal pride when reading the book. And you make the point again and again that upon the prosecutor rests the burden of truth-finding, truth-seeking. And I gather you feel that prosecutors generally abide by that obligation. But here at this table, the late William Kunstler, Alan Dershowitz, and others, have maintained, not their own pristine purity, but the notion that prosecutors in our country too, rather than looking for the truth, are looking to win. Now, I gather that that hasn’t been your experience over these many decades on the bench. And you were a defense attorney to start with.

ROTHWAX: I was a defense attorney, yeah. Obviously there are immature prosecutors. Obviously there are untrained prosecutors. Obviously there are bad prosecutors. Obviously there are, in the heat of battle, those who have an investment and an interest in seeing that their side wins. Although I tend to think that would be only in situations where they believe that the person was, in fact, guilty. I mean, on the occasions when I, as a defense attorney, would go to a prosecutor and say to that prosecutor, “I believe that my client is innocent” – I wouldn’t do that too often because it wasn’t true too often – but on those occasions when I did, and there were a number of them, I found the prosecutors responded intensely and with great energy to resolve their own doubts that I had created in their minds by what I had said. So, yes, it was overwhelmingly my impression that prosecutors are seeking to do the right thing, and when they have a doubt about whether a person is guilty that they will not go on with the prosecution. And while there are obviously miscreants within that group, as with any other, that overwhelmingly the prosecutor is seeking the truth, yes. And that, of course, is not the definition of a defense attorney. I’m not criticizing the defense attorney for not seeking the truth.

HEFFNER: You’re not?

ROTHWAX: No. Because that is not his task. No, I’m not criticizing them for that. Their job is to say for the defendant everything that can be said for that defendant under the law, with a view to seeing whether or not he can either mitigate the sentence or the punishment or the conviction that will come down, or avoid it altogether. So long as the defense attorney does that properly, so long as he does it ethically, so long as he does it within the bounds of law, then he serves our community. He serves it by challenging authority to act with integrity, to act responsibly, to act with sufficient evidence, and so on. So the role he plays is a very meaningful and important one if the adversary system is to work.

The problem is that most defendants are guilty. Under our system of probability screens we have made it important that we don’t bring people to jail who have not been determined previously on a number of occasions to be probably guilty. Everybody who goes to trial has been found to be probably guilty. That doesn’t mean that everybody who goes to trial is guilty. There are undoubtedly some people who are not. But it does mean that defense attorneys, 90 percent or more of the time, are representing guilty people. Guilty of something, not necessarily the top charge. And that puts a pressure upon defense attorneys to push the envelope, to use excessive zeal, to engage in tactics that may distort or may mislead juries or judges in the interests of their clients. Not all defense attorneys do that. But those who do are not controlled or disciplined by the legal profession or by the judges or by any other agency in our society.

HEFFNER: Would you have them controlled, punished, regulated by the judges, by their own peers, or by any other agency in government?

ROTHWAX: Well, I would prefer, obviously, for the defense lawyers to control themselves. And that would be the ideal thing. I mean, if defense lawyers exceeded the bounds and their own peers call them to task and set ethical standards that all of them abided by, that would clearly be preferable. If they will not do that – and I have seen no signs that they are prepared or inclined or eager to do that – then it seems to me it falls to the judiciary. And if the judiciary will not do that – and I have not seen any great signs that the judiciary is similarly inclined to do it – then it falls to the society at large to control and to restrain lawyers and to insist that they abide by the rules that they’re supposed to abide by.

HEFFNER: Well, in reading Guilty…

ROTHWAX: Yeah?

HEFFNER: …case after case – and they’re most exciting, they’re most interesting – I understand why the title of the book is Guilty. Question: What do you do? And I raise that question because I couldn’t help but be amused by the little notation, the expression, “The more I see of lawyers, the more I like my dog”. It was your mother who pronounced that.

ROTHWAX: Yes.

HEFFNER: Now, where are we, Judge? How can we get out of this morass? You talk about the Warren Revolution. What are you blaming in the Warren Revolution? If “blame” is the world.

ROTHWAX: Well, the Warren court accurately perceived many abuses that existed at that time, and acted sometimes, I think, appropriately, and sometimes inappropriately, to correct those abuses. Some of them, it seems to me, were not theirs to correct. It should have been for state legislatures to have corrected that. Some of them, it was within their province to correct.

I think what has happened is that they have gone too far with that. The pendulum, which favored the police excessively and allowed for these abuses, has not swung all the other way. And so now the defendants are advantaged. And it’s very hard to change that. Once we set a higher floor below defendants’ rights, it’s very hard to modify it. The Supreme Court itself is reluctant to modify it because of the power of precedent. It wants the law to be perceived as stable and lasting and enduring, and solid and noble. And so the Supreme Court is reluctant to overrule the precedent, eve if it has comet to the conclusion that it was a bad precedent. They’ll try to modify it, they’ll try to undercut it, but it’s very hard for them to reverse it entirely. So that’s one problem. The Supreme Court itself is reluctant to change the law.

The other problem is that the Warren courts, the effect of the Warren court’s rulings was to constitutionalize much of American criminal procedure. Once you say that these are matters of constitutional law, you effectively deprive the state’s legislatures, and the people, from doing anything, from writing anything, from passing anything that will modify or overrule or curtail what the Supreme Court has done. The result of that has been, unfortunately, I think, that criminal law tends to become very rigid over time. And it makes it very hard for the pendulum to swing back, however modestly or moderately or incrementally, because once you say that this advance is constitutionally required, the only way you can undo it is by a constitutional amendment.

The effect of it, also, is to leave a feeling of passivity within the public itself, a feeling that there’s very little that they can do to modify this or to change it, or even, at some level, given the complexity of the Supreme Court’s rulings, to understand it. I mean, none of my complaints in the book is that so much of law is unknowable. It’s unknowable by the judges, it’s unknowable by the police, and it’s unknowable by the public. And as a result, the public tends to leave this just as a matter for the Supreme Court, which, in a democracy, I don’t think is especially healthy.

HEFFNER: Well, you comment, in Guilty, I was so taken with it, you said, “If a chief judge of a state rides in a police car, he or she might be just as unknowing, just as puzzled as to what search and what seizure is permitted, as to what one can do when you’re called on the police phone and told that there’s a man with a gun…”

ROTHWAX: The Supreme Court itself has said that the law of search and seizure is intolerably confusing. Not only the chief judge of the state, it’s the chief judge of the United States. We recently had a case in New York which sort of symbolized that for me. There were two people who were arrested in the same apartment. They were brought to trial together. The evidence against them was identical. The jury found both of them guilty. They had previously moved to suppress the evidence that was obtained from the apartment, and they had lost at the trial level. So now they both appeal to the appellate court. The case went up to the appellate court, and, as luck would have it, ordinarily those appeals are consolidated and heard at the same time, as luck would have it, through some oversight, the two appeals went before two separate banks of judges. Now, these men had been sentenced to life imprisonment. And one panel of five judges, hearing the same evidence, said, “Well, this search was clearly good. The motion to suppress is properly denied, and he may go to jail for life”. And the other panel, also unanimously, said, “This search is clearly bad”. Okay. They all cited the same law and the same rules. I mean, the law has literally become unknowable.

HEFFNER: Now, I have to ask you at that point, because Guilty is filled with examples like that one, I ask, as I read it, how could it be? How could it be?

ROTHWAX: Well, I think it happens because the way of making the law is for the Supreme Court to decide it. That’s not a desirable way to do it. The Supreme Court was never intended to be a legislature. How can the Supreme Court make intelligible the whole law of search and seizure? It only hears one case on search and seizure every other year, or one case or two cases a particular year. The parameters of search and seizure law are usually wide. They deal with every contract between the citizen and the police officer. And those have thousands of permutations and thousands of combinations. So how can the Supreme Court elucidate that in any kind of a clear fashion by its sporadic, intermittent, unprogrammed way of passing upon search and seizure law? There’s no way that they can do it in a clear way. It would be far better for legislatures to be commissions, to set up a code of conduct for police officers and so on. But they’re dissuaded fro doing that because they don’t feel that they know whether or not the Supreme Court will endorse it, approve it, whether it’ll be lawful. And so the legislatures are rendered passive, and the lawyers are basically rendered passive. And we all wait for the great god in the sky, the Supreme Court, to render its decisions.

I mean, one other example of the unknowability of search and seizure laws: If a leading thesis, the leading treatise on search and seizure law is now four volumes and close to 4,000 pages. Now, no police officer can know all of that. And most of the judges don’t know all of that. I cite some cases in the book where the Supreme Court came down with some decisions where the appellate judges that I was lecturing to disagreed almost unanimously with what the Supreme Court had done. I mean, you just don’t know what the Supreme Court is going to do in the area of search and seizure laws.

HEFFNER: What would your recommendation be then, Judge Rothwax, in terms of what the Supreme Court, what posture should it take?

ROTHWAX: Well, I think one thing that we have to do, I mean, what we do now is, when the Supreme Court or any other court finds that the police officer has made some kind of a mistake there is a requirement of mandatory exclusion, that is relevant and probative and reliable evidence is suppressed, and the jury never hears it. And therefore we suppress evidence, we suppress truth, we burden the search fro truth, and so on.

Now, if it is true that the law is unknowable, then it seems to me foolish to require the exclusion of evidence when an officer may have acted with objective reasonableness and subjective good faith. That, it seems to me, is self-destructive and foolish. So I think that the first thing we have to do, and one of the things that I recommend in the book, is that we do away with the mandatory exclusionary rule. That is not found in the Fourth Amendment. That is a judicial construct. It’s not required, and not other Western country has that. Not Western Europe, not England, not Canada, not the British Commonwealth, not Scandinavia. We’re the only country in the world that has a mandatory exclusionary rule.

HEFFNER: In fact, Judge Rothwax, it seems to me that you make the point again and again that many of the outs that the law now provides for criminals are not based upon clear and present constitutional provisions.

ROTHWAX: No. They’re not found in the documents themselves. That is, it’s not found…The Fourth Amendment, the Fifth Amendment, and the Sixth Amendment are fairly clear in what they say. What we’re talking about and what I’m complaining about are recent interpretations by the U.S. Supreme Court.

HEFFNER: Now, recent. The Warren Revolution, going back to that notion.

ROTHWAX: Right.

HEFFNER: Why do you pick Warren? Are you saying that that court, from Earl Warren’s position as Chief Justice, leaned, began to lean and lean for some many years in the direction of being…What? What’s the current notion? Being soft on crime or soft on the criminal?

ROTHWAX: No, no.

HEFFNER: That’s the accusation.

ROTHWAX: These were good people, and they were smart people, and they were decent people. And they meant to do well.

HEFFNER: But?

ROTHWAX: The road to hell is paved with good intentions. They were dealing with abuses that they perceived at that time. And what they did was they put us in some kind of a constitutional straitjacket. They did it with the best will in the world. They did it thinking that they were doing good things. In effect, what they’ve done, being no more prescient than the rest of us, is to have imposed upon us a law of formalism, a law that defies understanding, a law that is not common-sensical, and a law that, in its operation, works to burden the search for truth and to allow criminals to go free without any passing good reason for it. That was an unforeseen result of what they did. They meant to do the right thing, and they were reacting to substantial abuses as they perceived at that time.

Now, in fairness, what they’ve done was to interpret…There is no exclusionary rule. There is no mandatory exclusionary rule…

HEFFNER: In the Constitution.

ROTHWAX: …in the Constitution. No. And for the first 170-some-odd years of our Constitution there was no requirement that any of the states of the United States suppress evidence on the grounds that it was illegally obtained. So that was a judicial construct. And though we now tend to accept it as part of our legal landscape, and many people would argue that it should not be questioned, there’s every reason in the world why it should be questioned.

HEFFNER: If you reject the notion that if the constable blunders somehow or some way the accused must benefit, if you reject that, where do you go, what do you do to put in its place?

ROTHWAX: Well, one thing I would do would be to substitute a discretionary exclusionary rule for a mandatory exclusionary rule. There are two kinds of violations of the Fourth Amendment. One kind of violation would be a knowing and deliberate and willful violation by the police of a person’s rights. They don’t know anything, they don’t suspect any crime, they kick a door down in the middle of the night, and they ransack an apartment. It’s inexcusable and frightening conduct in a democracy, and it must be dealt with in a clear and forceful fashion. And the police can be told in clear and unmistakable terms that that is a no-no; they must not behave that way. So I would have not problem with excluding that kind of evidence.

But most of the infractions that the police officers are engaged in are in areas where they cannot know what the law is. Well, it’s absurd to reward a serious, guilty defendant with his freedom because the officer has made a good-faith mistake under the law as he understood it.

HEFFNER: Wait a minute. Could I interrupt?

ROTHWAX: Yeah, sure.

HEFFNER: If he makes a bad-faith mistake…

ROTHWAX: I have no problem.

HEFFNER: …then should the…

ROTHWAX: I have no problem. Absolutely. I think that…

HEFFNER: Why?

ROTHWAX: Because at some level we are very much concerned with restraining police abuse. At some level, if the law can be clear, if the violation is significant, there is a proportion. What I am trying to bring into the law is proportionality. I am saying that one of the problems with the mandatory exclusionary rule is that there is no proportionality. That however minor or minimal or trivial the mistake that the police officer makes, the result is to exclude the evidence and to allow the serious criminal to go free. So there is no relationship between the “wrong” in quotation marks of the police officer and the benefit to the defendant. But we are a democracy. We are concerned with restraining police abuse. We do not want to become a totalitarian country. So if we can lay out a clear rule that can clearly be observed by police officers, and they willfully, determinately violate that, then there is a proportionality, a relationship between the wrong of the police and the benefit to the society.

HEFFNER: I understood, in reading Guilty, what proportionality means, and your emphasis upon rational procedures is a delight. But I can’t quite understand why under any circumstances the criminal should go free if the constable either blunders or purposefully knocks down a door, kicks down a door.

ROTHWAX: The reason we come to the exclusionary rule, it came out of a feeling that there was no alternative. That in fact, we had tried the police discipline, we had tried civil suits, we had tried other ways of disciplining the police.

HEFFNER: They don’t work?

ROTHWAX: Apparently, the Supreme Court, in 1961, decided that nothing else worked, and therefore we were to rely upon the exclusionary rule.

HEFFNER: But what about Rothwax?

ROTHWAX: My complaint was: The fact that nothing else works doesn’t mean that the exclusionary rule works. And I don’t believe the exclusionary rule works either.

I can foresee certain cases – which is why I would retain a discretionary exclusionary rule – certain cases where it might be appropriate to discourage knowing and willful and significant abuse by the police to exclude evidence. I can’t foresee that. And some of the countries of Western Europe have done that. Where it has been proportional, they have suppressed evidence in a discretionary fashion. I don’t think it should be the route of first or major resort. It should be a last resort. It should be a resort that we rely on only infrequently. Because obviously there is no reason why the criminal should be the one to benefit. Indeed, when the police behave improperly and nobody is arrested, then their impropriety goes undetected and uncorrected. So it seems to me that the exclusionary rule, right now, is relied on in every single case of search and seizure. And we should not be doing that; we should be limiting it to only a minor…

HEFFNER: There are so many other questions that I want to put to you, so many other suggestions that I want to solicit from you to make our criminal justice system less guilty, that I wish you’d stay where you are, and we’ll do a second program.

Thank you so much for joining me today, Judge Harold Rothwax.

ROTHWAX: Okay.

HEFFNER: And thanks, too, to you in the audience. I hope you’ll join us again next time too. And if you care to share your thoughts about our program today, please write: THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $4.00 in check or money order.

Meanwhile, as another old friend used to say, “Good night and good luck”.